The Supreme Court today heard oral argument in the congressional authority portion of the challenge to the Affordable Care Act--whether Congress had authority under the Commerce Clause or its taxing power to enact the minimum coverage requirement. Links to the audio files and transcript are here.

The questions at argument suggest that the case may turn on Chief Justice Roberts or Justice Kennedy (or both), both of whom, in different ways, appeared to give serious attention and thought to both sides of the argument. But if they leaned, both also seemed to lean toward opponents of the provision. For example, both (but Chief Justice Roberts perhaps more than Justice Kennedy) seemed much more skeptical of the government's argument than the opponents' argument. And Justice Kennedy at one point suggested that the government face an even higher burden, given the "unprecedented" nature of the provision. He also gave a short statement on the tradition in American law of not imposing a duty to act.

Justices Scalia and Alito seemed more set in their positions against the provision; and Justices Ginsburg, Breyer, Sotomayor, and Kagan seemed more set in their positions in favor. (Justice Thomas was silent, but his position (against) was never seriously in doubt.)

In short, this could be a squeaker one way or the other.

Several themes caught the Court's attention:

Nature of the Market. The Court spent time figuring out whether the relevant market is unique, because everyone will at some point enter it. This question turns on what the relevant market is (see below) and, at least in part, on the issue of timing (see below).

A Limiting Principle. The Court looked for a limiting principle in the government's position--one that would distinguish the parade of horribles offered by the Justices, including everything from the government requiring us all to eat broccoli to the government requiring us all to buy cell phones to use for emergencies. SG Verrilli came back with limiting principles distinguishing these examples, and Justice Kennedy seemed genuinely interested in them (or at least in hearing the states' responses to them).

The Relevant Market. The Court spent considerable time on the familiar arguments about the relevant market--is Congress regulating the market for health insurance, or the market for health care (or health care payment)? If the former, opponents argue that Congress is requiring something of people not yet in the market, and thus exceeding its authority under the Commerce Clause. Chief Justice Roberts and Justice Kennedy both seemed open at least to hearing the government's argument that the minimum coverage requirement regulates the market for health care (not health insurance).

Timing. Timing was an issue--whether Congress could regulate substantially before a person enters the market for health care, or whether Congress could only regulate at the point of entry, when, e.g., a person goes to the emergency room. Everyone seemed to agree that Congress could regulate at the point of entry; the question is how far before that Congress can regulate--and whether the Commerce Clause has anything at all to say about this.

Congressional Creation of the Market (and the Problem). Some expressed some concern that Congress created the interstate market and the very problem that it sought to address through the minimum coverage requirement by mandating that providers give free care to indigents. Even if this is so, however, it's not clear, as Justice Breyer noted, why this would be a constitutional problem: Congress creates interstate markets all the time.

Part of a Package. The Court gave some attention to the government's argument that the minimum coverage requirement was necessary to make the guaranteed issue and community rating provisions work--an argument that draws on Gonzales v. Raich. Opponents argued that Congress could have enacted these provisions without the minimum coverage provision; the government said that would have been ineffectual.

Policy. There were a couple exchanges on pure policy, in particular other ways that Congress might have achieved its goals. This shouldn't have any bearing on the constitutional question: congressional authority doesn't require something like a least-restrictive-means analysis. If these exchanges should translate into constitutional law, however--if, e.g., the Court looks to alternatives to show why the minimum coverage provision exceeds congressional authority--the result could tighten congressional authority in general along the lines of a least-restrictive-means test. This would mark an important change in the level of deference the Court usually gives to Congress in areas of congressional authority.

The Court spent more time on the Commerce Clause than on the taxing authority, but that's perhaps not a surprise. The Justices' leanings didn't seem to change whether the questioning went to the Commerce Clause or to the taxing authority.

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Comments

It seems to me the core point was raised by the "conservative justices," particularly Justice Kennedy who identified the "individual mandate" as posing essentially a liberty issue in commerce clause garb. Justice Kennedy was right to imply that the usual type of "rational basis" analysis often accorded economic regulation under both the Commerce Clause and Fifth Amendment due process would be insufficient when the Government seeks to require individuals immediately to purchase a product in the private market (or later pay a penalty) because the individuals (1) exist in our society, (2) likely will make use of the product at some future time, and, (3) failure to buy the product adversely affects the relevant market.

However, I think the Government has made the case that health insurance falls into the narrow class of products -- perhaps it is a class of one -- that could meet such a “rationality with bite” test, to borrow the term from Prof. Gunther. I am willing to accept that access to complete and affordable health care is essential to civil society, and, that such access is so substantially jeopardized by market freeloaders that Congress can correct the market by, inter alia, compelling individuals to buy insurance now or pay penalties later.

In that regard, the liberty aspects of due process, as imported into commerce jurisprudence, support the imposition of this mandate. I offer the following, admittedly imperfect analogy. (I have not read the Supreme Court briefs. If this analogy is raised therein, I do not mean to plagiarize and I do not claim that this analogy has not been conceived by others). Suppose a new, deadly virus suddenly appears. The virus is highly contagious but science quickly discovers an effective and safe vaccine. I believe Government could require all persons to be immunized and to bear individually the expense of the immunization, leaving aside the special case of indigents. In other words, the societal need is so great that Government could require recalcitrant individuals to purchase and use the vaccine even though the individuals are doing nothing but existing and it is possible that, despite the virus’ virulence, the unwilling persons will neither contract the virus nor infect others. (I assume for the moment that there is no overarching liberty violation in requiring unwilling individuals to be vaccinated.)

Similarly, the record shows that the skewed economics of the inarguably interstate medical market prevents many individuals from accessing essential, meaningful health care. People who could be medically treated are dying or surviving but enduring severe pain and other disabilities because of the economics of today’s health market. Setting such urgency as the minimum “rational basis” seems to me to be a manageable standard – at least as manageable as most constitutional standards – if the Government would compel persons to buy a product that they might neither want nor use and when they engage in no special behavior that reasonably would require them to purchase protection. In that way I can distinguish state laws requiring motorists to buy drivers’ insurance.